Citation Nr: 0208365
Decision Date: 07/24/02 Archive Date: 07/29/02
DOCKET NO. 00-24 407A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to service connection for bilateral hearing loss.
(The issue of entitlement to service connection for post-
traumatic stress disorder (PTSD) will be the subject of a
later decision.)
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and spouse
ATTORNEY FOR THE BOARD
B.E. Jordan, Counsel
INTRODUCTION
The veteran had active military service from September 1965
to August 1969.
This appeal to the Board of Veterans' Appeals (Board) arises
from a September 1999 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Montgomery,
Alabama.
In March 2002, the veteran had a videoconference hearing at
the RO before the undersigned Board member. A transcript of
the hearing is of record. The case has been advanced on the
docket because of administrative error that resulted in
significant delay in docketing the appeal. 38 C.F.R.
§ 20.900(c) (2001).
Subsequent to the hearing the veteran submitted evidence
pertinent to his claims to the Board consisting of
correspondences dated in April and July 2002 and the report
of a VA examination dated in January 2002. The veteran
waived RO consideration of this evidence. 38 C.F.R.
§ 20.1304 (2001). See, e.g., 67 Fed. Reg. 3099, 3105 (Jan.
22, 2002) (effective February 22, 2002, 38 C.F.R. § 20.1304
was revised by removing the requirement for a written waiver
of RO consideration prior to review evidence submitted
directly to the Board).
With respect to the claim of entitlement to service
connection for PTSD, the Board notes that additional
development in this matter is required pursuant to authority
granted by 67 Fed. Reg. 3,099, 3,104 (Jan. 23, 2002) (to be
codified at 38 C.F.R. § 19.9(a)(2)). When it is completed,
the Board will provide notice of the development as required
by Rule of Practice 903. (67 Fed. Reg. 3,009, 3,105 (Jan.
23, 2002)(to be codified at 38 C.F.R. § 20.903.)) After
giving the notice and reviewing the veteran and/or his
representative's response to the notice, the Board will
prepare a separate decision addressing of that issue.
A VA examiner, who examined the veteran in January 2002,
stated it was at least as likely as not that that the
veteran's tinnitus was related to his hearing loss. The
examiner's statement suggests a causal connection between the
veteran's bilateral hearing loss which the Board finds to be
service connected, as discussed below, and tinnitus. It
raises the inferred issue of entitlement to service
connection for tinnitus as secondary to service-connected
bilateral hearing loss. EF v. Derwinski, 1 Vet. App. 324
(1991). The matter is referred to the originating agency for
any action deemed appropriate.
FINDINGS OF FACT
1. During service, the veteran was exposed to acoustic
trauma.
2. There is audiological evidence of bilateral hearing loss
recognized as a disability for VA purposes, and medical
opinion establishing a nexus between current bilateral
sensorineural hearing loss and service.
CONCLUSION OF LAW
Bilateral hearing loss was incurred as result of the
veteran's active military service. 38 U.S.C.A. §§ 1110,
5103, 5103A, 5107 (West 1991 & Supp. 2002); 38 C.F.R.
§§ 3.303(d), 3.385 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Veterans Claims Assistance Act
The November 9, 2000, enactment of the Veterans Claims
Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A, 5107, 5126 (West Supp. 2002), prescribed VA's
duties to notify claimants for VA benefits of forms and
information necessary to submit to complete and support the
claim, to provide necessary forms, and to assist the claimant
in the development of evidence. VA has promulgated
regulations implementing the VCAA. See 66 Fed. Reg. 45,620-
45,632 (Aug. 29, 2001) (to be codified as amended at 38
C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)).
The Board finds that the RO has substantially satisfied its
duties of notice and assistance and that sufficient evidence
is of record to decide the veteran's claim for service
connection for bilateral hearing loss. If there were any
deficiency of notice or assistance, it would not be
prejudicial to the veteran, given the favorable nature of the
Board's decision with regard to the issue of entitlement to
service connection for bilateral hearing loss. No further
assistance in developing the facts pertinent to the issue is
required.
II. Service Connection
The veteran asserts that he has bilateral hearing loss as
result of service. Specifically, the veteran contends that
he was exposed to noise while serving as a crew chief in a
C130 aircraft.
Service connection may be granted for disability resulting
from disease or injury incurred or aggravated during service.
38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2001).
Certain diseases, including sensorineural hearing loss, may
be presumed incurred in service if shown to have manifested
to a compensable degree within one year after the date of
separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113
(West 1991 & Supp. 2002); 38 C.F.R. §§ 3.307, 3.309 (2001).
For the showing of a chronic disease in service, there is
required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
"chronic." When the disease entity is established, there
is no requirement of evidentiary showing of continuity.
Continuity of symptomatology is required only where the
condition noted during service is not, in fact, shown to be
chronic or where the diagnosis of chronicity may be
legitimately questioned. When the fact of chronicity in
service is not adequately supported, then a showing of
continuity after discharge is required to support the claim.
38 C.F.R. § 3.303(b).
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d). Evidence of a
current hearing loss disability (i.e., one meeting the
requirements of section 3.385, as noted above) and a
medically sound basis for attributing such disability to
service may serve as a basis for a grant of service
connection for hearing loss. See Hensley v. Brown, 5 Vet.
App. 155, 159 (1993).
For purposes of applying the laws administered by VA,
impaired hearing will be considered to be a disability when
the auditory threshold in any frequencies of 500, 1000, 2000,
3000, and 4000 Hertz is 40 decibels or greater; or when the
auditory thresholds for at least three of the frequencies
500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or
greater; or when speech recognition scores using the Maryland
CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2001).
In determining whether service connection is warranted for a
disability, VA is responsible for determining whether the
evidence supports the claim or is in relative equipoise, with
the veteran prevailing in either event, or whether a
preponderance of the evidence is against the claim, in which
case the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
Service personnel records reflect the veteran's military
occupational specialty was that of an aircraft maintenance
specialist.
When the veteran entered service in September 1965, his
hearing was recorded in pure tone thresholds (in decibels) as
5(20), 0(10), 0(10), 0(10), 10(15), and 10(20) at 500, 1000,
2000, 3000, 4000, and 6000 Hertz (Hz) in the right ear and
15(30), 0(10), 10(20), 10(20), 15(20), and 55(65) at 500,
1000, 2000, 3000, 4000, and 6000 Hz in the left ear. (The
figures in parentheses are based on International Standards
Organization (ISO) standards to facilitate date comparison.
American Standards Association (ASA) standards were utilized
in service medical records until November 1967).
When examined for separation from service in March 1969, the
veteran's hearing was recorded as 15, 5, 10, 10, 10, and 35
decibels at 500, 1000, 2000, 3000, 4000, and 6000 Hertz (Hz)
in the right ear and 15, 0, 5, 10, 15, and 45 decibels at
500, 1000, 2000, 3000. 4000, and 6000 Hertz in the left ear.
A private audiological examination dated in August 1972
reflects that the veteran's hearing was 25, 20, 10, 25, and
30 decibels at 500, 1000, 2000, 3000, and 4000 Hz in the
right ear and 15, 15, 25, 15, and 20 decibels at 500, 1000,
2000, and 4000 Hz in the left ear.
A VA compensation and pension examination dated in August
1999 reflects that conversational hearing was normal.
The veteran underwent VA audiological examinations in
September 1999. At that time, the veteran reported deceased
hearing which he stated began around 1970 to 1971. He
indicated that he was around aircraft for four years and that
he was a crew chief with the use of ear protection. As a
civilian, the veteran indicated that he worked around
construction noise indirectly. The veteran's hearing was
recorded as 20, 20, 30, 45, and 50 decibels at 500, 1000,
2000, 3000, and 4000 Hz in the right ear and 25, 15, 35, 45,
and 50 at 500, 1000, 2000, 3000, 4000 Hz in the left ear.
Word recognition was within 92 percent in both ears. The
diagnosis was bilateral sensorineural hearing loss mild to
moderate at 500 to 3000 Hz in the right ear and 3000 to 8000
Hz in the left ear. The diagnosis was moderate high
frequency sensorineural hearing loss at 4000 Hz.
VA outpatient treatment record dated in October 2000 reflects
that the veteran complained of bilateral hearing loss.
At a January 2002 VA audiometric examination, the veteran
reported that while serving in Vietnam he was exposed to loud
noise while serving as a crew chief in a C130 aircraft. The
veteran stated that ear protection was worn occasionally.
After service, the veteran reported that he worked at an Army
depot with the first few years being in an environment that
was somewhat noisy when working on transmissions. The
veteran's hearing was recorded as 35, 45, 55, 65, and 70
decibels at 500, 1000, 2000, 3000, and 4000 Hz in the right
ear and 40, 40, 45, 60, and 65 decibels at 500, 1000, 2000,
3000, and 4000 Hz in the left ear. Speech recognition was 88
percent in the right ear and 84 percent in the left ear.
Diagnostic and clinical test results suggested normal middle
ear pressure and mobility bilaterally and confirmed sensory
neural hearing loss bilaterally. The examiner noted that
reliability of the testing was good. The diagnosis was mild
to moderately severe sensory neural hearing loss,
bilaterally. The examiner indicated that he had reviewed the
veteran's claims file. As to the etiology of the veteran 's
hearing loss, the examiner noted that the veteran showed a
decrease in hearing acuity at 6000 Hz in the right ear at
separation from service and indicated that the veteran's
hearing would have been considered normal at that time.
However, the examiner noted that a decrease in hearing was
noted at 6000 Hz in the right ear from the day of enlistment
to the date separation and that three years following the
veteran's separation from service at a civilian occupation
(pre-employment at Anniston Army Depot) a hearing evaluation
indicated further decrease in hearing, especially in the high
frequency range. The examiner opined that based on upon the
hearing thresholds, the veteran displayed a slight decrease
in hearing in the right ear while in the military. The
diagnosis was bilateral sensorineural hearing loss and that
the loss proven to continue to be progressive since discharge
from service.
At the March 2002 personal hearing, the veteran and his
spouse provided testimony in support of the veteran's claim
for service connection for bilateral hearing loss.
In this matter, the veteran asserts that he developed a
hearing loss as a result of noise exposure during service.
The evidence establishes that the veteran served as an
aircraft maintenance specialist. However, the record shows
that the veteran's only decreased hearing at the higher
thresholds (6000 Hz) from the time of entrance into and
separation from service. Although the service hearing
results of the ears do not meet the regulatory requirements
for service connection for hearing loss as prescribed by
38 C.F.R. § 3.385, service connection may still be
established. See Hensley v. Brown, 5 Vet. App. 155, 160
(1993). Three years after the veteran separated from service
he demonstrated decreased hearing in the higher frequencies,
and he was subsequently diagnosed as having bilateral
sensorineural hearing loss meeting the VA regulatory
requirements. Considering the veteran's background and
history, the VA examiner in January 2001 concluded that the
veteran's current bilateral hearing loss is related to
service. In light of these factors, the Board finds that
service connection for bilateral hearing loss is warranted.
38 C.F.R. § 3.385; Hensley v. Brown, supra.
ORDER
Service connection for bilateral hearing loss disability is
granted.
J. SHERMAN ROBERTS
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.